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Accept, appeal or pass a new law: Options for voter ID supporters in Pennsylvania

A Commonwealth Court judge struck down the law on Friday

By Ed Mahon

emahon@ydr.com @edmahonreporter on Twitter

Updated:
01/19/2014 01:25:16 PM EST

Gov. Tom Corbett gestures as he responds to a question during a news conference Friday in Philadelphia after the state voter ID law was struck down. (Matt Rourke -- The Associated Press)

State Rep. Stan Saylor, R-Windsor Township, and other supporters of Pennsylvania's voter identification requirements said they modeled their law after an Indiana one, which was upheld by the U.S. Supreme Court nearly six years ago.

But state constitutions can protect more rights than the federal constitution, said Michael R. Dimino, an associate professor at Widener University School of Law.

"The federal constitution sets a minimum," he said.

A Commonwealth Court judge on Friday decided that Pennsylvania's new voter ID law didn't meet the standards here.

State Rep. Stan Saylor (Submitted)

Judge Bernard L. McGinley struck down Pennsylvania's voter ID law, ruling in favor of the plaintiffs, who included the Homeless Advocacy Project, the League of Women Voters of Pennsylvania and individual voters.

The law, passed and signed in March 2012, would have required a voter to show valid photo identification at the polls to have their ballot count that day. Otherwise, voters would have to fill out a provisional ballot and later provide ID to a county board of election or submit an affirmation that they can't afford an ID.

James D. Schultz, general counsel for Gov. Tom Corbett, said in a statement Friday that his office was evaluating the opinion to determine whether to file post-trial motions.

Saylor, one of the co-sponsors of the original bill, said he expects the Corbett administration to challenge the ruling.

"We'll fight this at a higher court," Saylor said. "We'll win this."

Indiana's court challenge began in the federal court system, while Pennsylvania's began in the state system. Dimino said that while cases that begin in a state system can end up in the federal one, the Pennsylvania case does not have substantial federal issues.

So the state Supreme Court would be the final step for any challenges in this case, Dimino said.

Even if the ruling isn't overturned in Pennsylvania, there are limits to its impact, he said.

Because the issues involve the Pennsylvania constitution, the ruling doesn't mean other states can't pass similar voter ID laws.

And the ruling doesn't mean that Pennsylvania lawmakers can't try again with a photo ID law.

"It's still possible that a different law, applied in a different way, would be constitutional even in Pennsylvania," Dimino said.

Here's a look at the Indiana decision, its influence, Friday's ruling and voter ID options.

Indiana

Indiana passed its voter ID law in 2005. In federal court, opponents argued that it violated the Fourteenth Amendment to the U.S. Constitution, which says states can't deny people "equal protection of the laws."

In 2008, the U.S. Supreme Court upheld Indiana's photo ID requirement with a 6-3 ruling. Justice John Paul Stevens, now retired, noted in an opinion that Indiana's Bureau of Motor Vehicles was providing free photo identification cards.

"For most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting," he wrote.

Stevens said there wasn't evidence that any class of voters had "excessively burdensome requirements" because of the legislation.

Robert Reinstein, a constitutional law scholar and former dean of Temple University's Beasley School of Law, said that when federal courts get involved in state voting cases, the issue typically comes down to whether certain groups are being discriminated against.

"In the Indiana case .. the discrimination claim was seen as weak," Reinstein said. "And the court accepted the argument that there was a legitimate reason for the law, which was to prevent voting fraud."

Wendy Underhill, program manager for elections at the bipartisan National Conference of State Legislatures, said the number of states passing voter ID laws increased after the U.S. Supreme Court ruling.

Rep. Will Tallman (Submitted)

"In 2011 and 2012, voter ID laws were a particularly hot topic in state legislatures," she said.

Five states -- Georgia, Indiana, Kansas, Tennessee and Texas -- had strict photo ID requirements in effect in 2013, according to the National Conference of State Legislatures, which tracks the issue. Some others states had laws slated to take effect at the start of or during 2014. Others, like in Pennsylvania, were on hold because of court cases.

Pennsylvania

Pennsylvania and Indiana's laws had similar requirements.

But McGinley considered the ones in Pennsylvania a burden, partially because of how the state rolled out the changes.

In Friday's decision, he criticized the Department of State and Department of Transportation's "convoluted implementation process" for distributing new free Department of State voter IDs, saying it "limits rather than liberalizes access."

McGinley, a Democrat, said that getting a Department of State photo ID requires people to appear in person at one of PennDOT's 71 driver's license centers. Not all counties have centers that offer photo IDs, he said.

"Wait times are an additional barrier that must be endured by electors, exceeding 30 minutes in many cases ..." he said.

McGinley said the Department of State failed to perform its "educational mandate," which created voter confusion.

He said the voter ID law "does not pass constitutional muster" because it "does not provide a non-burdensome means of obtaining compliant photo ID."

"Like a house of cards, everything rises and falls upon the legitimacy of the" Department of State voter IDs, he said.

He said hundreds of thousands of people in Pennsylvania don't have a compliant photo ID. He said alternate IDs, such as ones from colleges or long-term care facilities, "are not a sufficient bandage to repair the shortfalls" of the law.

Reinstein said McGinley found that the law itself isn't being implemented correctly and that it violated the state constitution.

In part of McGinley's opinion, he denied a discrimination argument from the plaintiffs, Reinstein said.

Options

The Associated Press reported Friday that an attorney for Corbett said the administration could ask for the case to be reviewed by the full Commonwealth Court or appeal directly to the Pennsylvania Supreme Court.

Dimino said it's tough to figure out the chances of success for an appeal to the state Supreme Court, because so much of the Commonwealth Court case turned on how the law was being applied.

Dimino said those factual determinations are typically best made by trial-level courts. Reinstein said some of the factual-determinations, including whether expert testimony was credible, would be hard to overcome on appeal.

G. Terry Madonna, a pollster and political science professor at Franklin & Marshall College in Lancaster, said it's tough to say whether the General Assembly would want to tackle the issue again.

"First of all, they're not going to do anything until the appeals process is up. And who knows when the Supreme Court would take it up," Madonna said. "This thing has been floating around since the spring of 2012."

State Rep. Will Tallman, R-Reading Township, Adams County, was another of the local co-sponsors of the original legislation.

He supports an appeal, but if there's no successful one, he said he would be open to trying to get another law passed.

Although there are questions with that strategy.

"We'd probably have to talk some lawyers to figure out what exactly the court had a problem with and see if we could write something that gets around that objection," Tallman said.

Contact Ed Mahon at 717-771-2089.

A look at polling and the impact

Court decisions have prevented Pennsylvania's new voter identification new law from being fully in effect for any primary or general election since the law passed in 2012.

G. Terry Madonna, a pollster and political science professor at Franklin & Marshall College in Lancaster, said the law helped motivate Democrats in some areas. But he doesn't think it caused enough of a change to affect an election result.

In a September 2012 Franklin & Marshall College poll, 59 percent of respondents said they favored requiring voters to show photo identification, while 39 percent were opposed.